Citation Nr: 18146714 Decision Date: 11/01/18 Archive Date: 10/31/18 DOCKET NO. 12-18 385 DATE: November 1, 2018 ORDER Service connection for chronic allergies, to include sinusitis and rhinitis, is denied. Service connection for hypertension, to include as secondary to service-connected diabetes mellitus and/or the claimed chronic allergies, is denied. FINDINGS OF FACT 1. Chronic allergies, to include sinusitis and rhinitis, preexisted the Veteran’s service. 2. The Veteran’s chronic allergies were not aggravated or permanently worsened beyond normal progression during or as a result of his military service. 3. The Veteran’s hypertension was not incurred in or otherwise the result of his active service; or as secondary to service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic allergies, to include sinusitis and rhinitis have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(c), 3.304(b), 3.306, 3.310. 2. The criteria for service connection for a hypertension are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(b), 3.307(a), 3.309(a), 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1969 to September 1971. These matters are before the Board of Veterans’ Appeals (Board) on appeal from September 2007 and August 2008 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in July 2015. A transcript of this hearing is of record. In January 2016, the Board promulgated a decision which denied the claims of entitlement to service connection for chronic allergies and hypertension. The Board further notes that the Veteran appealed the January 2016 decision to the United States Court of Appeals for Veterans Claims (Court). By an October 2016 Order, the Court, pursuant to a joint motion for remand (JMR), vacated the Board’s decision to the extent it denied the allergies and hypertension claims, and remanded these claims for action consistent with the JMR. In August 2017, the Board remanded the claims to the RO for additional development. The Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). 1. Entitlement to service connection for chronic allergies, to include sinusitis and rhinitis. To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). When the presumption of soundness attaches to a claim but there is a question of preexisting disability, VA has the burden of establishing by clear and unmistakable evidence (1) that a disability preexisted service and (2) that there was no aggravation during service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In deciding whether a condition preexisted service the Board must consider the Veteran’s medical history, accepted medical principles, evidence of the “basic character, origin and development” of the condition and “lay and medical evidence concerning the inception, development and manifestations” of the particular condition. 38 C.F.R. § 3.304(b)(1)-(2). A pre-existing disease or injury will be found to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). The Veteran essentially contends, to include at his July 2015 hearing, that he had no problems with allergies prior to service; and that he developed chronic allergies while on active duty in the Republic of Vietnam. Post-service treatment records reflect that the Veteran’s complaints of recurrent allergies have been attributed to sinusitis and/or allergic rhinitis. A December 1968 enlistment examination found the Veteran’s sinuses to be normal and he reported a history of sinusitis in an accompanying Report of Medical History. The examiner also noted mild sinusitis in the Report of Medical History. As such, the Veteran is presumed to have been in sound condition upon entrance into active duty with respect to sinusitis and/or rhinitis. Service treatment records show inservice treatment of sinus congestion with antihistamine on October 17, 1970. A treatment note dated January 5, 1971 showed an evaluation for head cold with some diarrhea and treated conservatively with antihistamine and aspirin. A treatment note dated May 31, 1971 documented an evaluation for upper respiratory symptoms with an impression of upper respiratory infection r/o sinusitis and treated with antibiotics and antihistamines. The September 1971 separation examination report showed no complaints of a nasal or sinus condition suggesting resolution. In the January 2016 decision, the Board found that the Veteran’s sinusitis was noted at the time of his entry into active duty and was not aggravated therein. The October 2016 JMR determined that the Board’s finding that sinusitis was noted at the time of the Veteran’s enlistment into active duty was not supported by adequate reasons and bases as the Veteran’s sinuses were found to be normal on the Report of Medical Examination. The Board notes that the January 2012 VA opinion appears to be based, at least in part, on an inaccurate factual premise, namely the belief that a diagnosis of sinusitis was noted on enlistment examination, without considering other material evidence or other clinical factors in the determination. 38 C.F.R. § 3.304(b)(1); see Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). Therefore, a new etiology opinion was obtained in accordance with the August 2017 Board remand. In a November 2017 report, the VA examiner opined that the Veteran’s history of mild sinusitis noted on the December 1968 examination indicates that the condition clearly and unmistakably pre-existed military service. The examiner explained that unless there are complications, it is reasonable to have normal sinus examinations prior to and after a sinus infection. X-ray examinations are not typically needed unless complications are suspected. The examiner further opined that the Veteran’s allergy/sinus condition was not aggravated during service beyond its natural progression. Service treatment records dated October 1970, January 1971, and May 1971 indicate treatment for sinus/allergic/upper respiratory symptoms condition consistent with the natural progression of an allergic/sinus condition. This suggests that these incidents were temporary flares, as the separation examination was normal for the nasal/sinus condition. As the Veteran was treated conservatively and did not have any surgical procedure to his nasal sinuses during military service and there was no evidence of treatment for allergic rhinitis within the first year of separation, the evidence does not reflect aggravation during military service. The examiner referenced peer-reviewed articles in medical literature, which found that sinusitis or rhinosinusitis is an inflammation of the sinuses resulting in symptoms such as facial pain, plugged nose, thick nasal mucus, fever, headaches, sore throat, cough, and poor sense of smell. Serious complications are rare. It is defined as acute rhinosinusitis (ARS) if it lasts less than 4 weeks, and as chronic rhinosinusitis (CRS) if it lasts for more than 12 weeks. As such, the examiner concluded that chronic allergies, to include allergic rhinitis/sinusitis, clearly and unmistakably existed prior to military service and was not incurred in, nor aggravated beyond its natural progression during military service and was not the result of his active military service. He also noted that the evidence, particularly the service treatment records, did not reflect an increase in the severity of the Veteran’s in-service symptoms. He reasoned that the Veteran’s in-service treatment for three episodes of sinusitis and a normal separation examination reinforce that the Veteran was treated conservatively during these occasions without any indication of a surgical procedure due to increased severity. The examiner explained that this supported that the Veteran’s in-service symptoms of sinusitis is consistent with natural progression of the disease, without any increase in severity that would result in aggravation. He also opined that the Veteran’s sinusitis/allergic rhinitis is less likely than not directly related to service as there is clear and unmistakable evidence that the condition pre-existed service. After review of the record, the Board finds that service connection for chronic allergies is not warranted. Turning first to the statements made by the Veteran, the Board acknowledges that laypersons are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, while the Veteran may be competent to report the manifestation of symptoms of his chronic allergies, he is not competent to provide medical opinions regarding the causes or aggravating factors of that condition. As the Veteran has not shown to have appropriate medical training and expertise, he is not competent to render probative (i.e., persuasive) opinions on medical matters. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Bostain v. West, 11 Vet. App. 124, 127 (1998); Routen v. Brown, 10 Vet. App. 183, 186 (1997) (“a layperson is generally not capable of opining on matters requiring medical knowledge”). Hence, his lay assertions in this regard have no probative value. In addressing the competent evidence of record, the Board finds that the negative opinion of the November 2017 VA examiner, provided after reviewing the entirety of the claims file, is highly probative as it reflects consideration of all relevant facts. The examiner provided a detailed rationale for the conclusion reached. His conclusion is supported by the medical evidence of record, which includes service treatment records indicating that the Veteran had temporary exacerbation of symptoms during service and accepted medical literature finding that the sinusitis is acute if it lasts less than 4 weeks. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Significantly, there is no competent medical opinion of record to the contrary. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus and/or the claimed chronic allergies. In January 2016, the Board denied entitlement to service connection for hypertension as presumptively or directly caused or related to service. The Board also found that service connection was not warranted as secondary to service-connected diabetes mellitus. As the October 2016 JMR and accompanying Order vacated the Board’s decision to the extent it denied the hypertension claim without considering as secondary to chronic allergies, the Board will only adjudicate theory of entitlement to hypertension as secondary to chronic allergies. As the Board finds herein that service connection for chronic allergies, to include sinusitis and rhinitis, is not warranted, entitlement to service connection for hypertension as secondary to chronic allergies is also not warranted. In the alternative, a new etiology opinion, which considers whether hypertension was caused or aggravated by chronic allergies, was obtained in accordance with the August 2017 Board remand. In a November 2017 report, the VA examiner opined that it was less likely than not that hypertension was caused or aggravated by his chronic allergies. He explained that chronic allergies are not a known cause or source of aggravation for hypertension. The examiner reasoned that the Veteran had normal blood pressure readings during service and at separation. He also referenced medical literature finding that high blood pressure is classified as either primary (essential) high blood pressure or secondary high blood pressure. About 90-95 percent of cases are primary, which is defined as high blood pressure due to nonspecific lifestyle and genetic factors. Lifestyle factors that increase the risk include excess salt, excess body weight, smoking, and alcohol. The remaining five to ten percent of cases are categorized as secondary high blood pressure, defined as high blood pressure due to an identifiable cause, such as chronic kidney disease, narrowing of the renal arteries, or an endocrine disorder. The Board notes that July 2011 VA examiner found that the Veteran’s hypertension was not a complication of diabetes mellitus as it preceded its onset, and it was not worsened or aggravated by diabetes as the Veteran’s A1C factor showed good glycemic control. Turning first to the statements made by the Veteran, the Board acknowledges that laypersons are competent to report on matters observed or within their personal knowledge. See Layno, 6 Vet. App. at 470. However, while the Veteran may be competent to report the manifestation of symptoms of his hypertension, he is not competent to provide medical opinions regarding the causes or aggravating factors of that condition. As the Veteran has not shown to have appropriate medical training and expertise, he is not competent to render probative (i.e., persuasive) opinions on medical matters. See Jandreau, 492 F.3d at 1376-77; Bostain, 11 Vet. App. at 127; Routen, 10 Vet. App. at 186. Hence, his lay assertions in this regard have no probative value. In addressing the competent evidence of record, the Board finds that the negative opinion of the November 2017 VA examiner, provided after reviewing the entirety of the claims file, is highly probative as it reflects consideration of all relevant facts. The examiner provided a detailed rationale for the conclusion reached. His conclusion is supported by the medical evidence of record, which includes accepted medical literature indicating that 90 to 95 percent of cases of hypertension are a result of various non-specific lifestyle and genetic factors, such as excess salt, excess body weight, smoking, and alcohol use. See Nieves-Rodriguez, 22 Vet. App. at 302-04. Significantly, there is no competent medical opinion of record to the contrary. The Board is grateful to the Veteran for his honorable service, and regrets that a more favorable outcome could not be reached. In reaching the above conclusions,   the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Bilstein, Associate Counsel